STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BC520356RO
: DISTRICT RENT OFFICE
Carmen Espinosa, DOCKET NO. UC000164R
TENANT: Alberto Vega
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On March 18, 1987, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on February 17, 1987, by
the Rent Administrator concerning the housing accommodations known as
171 East 115th Street, New York, New York, Apartment No. 7, wherein the
Rent Administrator determined that the owner had overcharged the tenant.
The administrative appeal is being determined pursuant to the provisions
of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issue
raised by the administrative appeal.
This proceeding was commenced by the filing of a rent overcharge
complaint by the tenant in November, 1985. The owner was served with a
copy of the tenant's complaint and responded in substance, that the
tenant had been paying $140.00 rent per month from 1978 to 1985, but had
agreed to pay $250.00 per month which the owner requested due to
hardship, effective October 1, 1985. The owner asserted that she
believed she was entitled to more than $250.00 per month in rent, based
on allowable guidelines increases. The owner also asserted that she was
entitled to a rent increase due to the installation of a new roof, oil
burner, bathroom tiles and fixtures and kitchen faucet and plumbing.
In support of these allegations, the owner submitted the following
documents: two photocopies of paid invoices from "German Rivera Building
Renovations/Repairs": the first, No. 8375, dated September 10, 1985, for
various repairs to the bathroom, kitchen and living room of the subject
housing accommodations; the second, No. 8379 dated October 15, 1985, for
installation of a new roof and oil burner.
In addition, the owner submitted her computation of allowable rents,
including yearly guidelines increases.
Under Docket Number ZUC000164R, the Rent Administrator established the
lawful stabilized rent as $140.00 per month effective April 1, 1984,
deemed a lease for the period from October 1, 1985 to August 31, 1987 at
a monthly rent of $152.60 and denied any increase for the work performed
in the subject apartment as not constituting improvements. The
Administrator determined that the tenant had been overcharged and
directed a refund to the tenant of $1,746.60, including interest on
overcharges collected on or after April 1, 1984.
In this petition, the owner contends that she was entitled to an
additional $15.00 per month for low rents for the lease commencing
October 1, 1985 and that she was improperly denied increases for
improvements she made to the subject housing accommodations.
The tenant did not respond to the petition.
The Commissioner is of the opinion that this petition should be granted
in part, and the order of the Administrator modified.
An examination of the Administrator's rent calculation chart reveals the
following inconsistency: the deemed lease term is indicated as
commencing on September 1, 1985, but both the effective date of increase
and the beginning of the overcharge calculations was October 1, 1985.
Since it is clear that October 1, 1985 was the commencement date
intended by the Administrator and it is undisputed that increases were
paid as of that date, the Guidelines period that should have been used
was Guidelines No. 17 rather than Guidelines 16, which period expired on
September 30, 1985. The computation under Guidelines 17 should include
a 6.5% increase for a deemed 2 year renewal lease plus a $15.00
allowance for low rent.
The revised rent calculations are as follows: On October 1, 1985, to the
initial legal registered rent of $140.00, is added the Guidelines 17
increase of 6.5 per cent, plus $15.00 per month, for a lawful stabilized
rent totalling $164.10 per month. Since the tenant was charged $250.00,
the resultant monthly overcharge was $85.90. The total overcharge for
the period from October 1, 1985 to January 31, 1987, including interest
on overcharges and excess security, is $1,547.92.
The two major work items for which the owner seeks recompense are a new
roof and a new oil burner. The Commissioner finds that these items are
ineligible as installations "in or to the housing accommodation", as
required by Section 2522.4 (a)(1) of the Rent Stabilization Code, but
rather fall within the category of major capital improvements, under
Section 2522.4(a)(2), and the owner should have sought relief under that
section in a timely fashion.
The Administrator was correct in finding that the balance of the work
done in the subject apartment constituted ordinary maintenance and
repairs, and thus the owner may collect no increase under Section 2522.4
(a)(1) of the Rent Stabilization Code.
The owner is directed to reflect the findings and determinations made in
this order on all future registration statements, including those for
the current year if not already filed, citing this order as the basis
for the change. Registration statements already on file, however,
should not be amended to reflect the findings and determinations made in
this order. The owner is further directed to adjust subsequent rents to
an amount no greater than that determined by this order plus any lawful
The Commissioner has determined in this Order and Opinion that the owner
collected overcharges of $1,547.92. This Order may, upon expiration of
the period for seeking review of this Order and Opinion pursuant to
Article Seventy-eight of the Civil Practice Law and Rules, be filed and
enforced as a judgment or not in excess of twenty percent per month of
the overcharge may be offset against any rent thereafter due the owner.
Where the tenant credits the overcharge, the tenant may add to the
overcharge, or where the tenant files this Order as a judgment, the
County Clerk may add to the overcharge, interest at the rate payable on
a judgment pursuant to section 5004 of the Civil Practice Law and Rules
from the issuance date of the Rent Administrator's Order to the issuance
date of the Commissioner's order.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition for administrative review be, and the same
hereby is, granted in part, and, that the order of the Rent
Administrator be, and the same hereby is, modified pursuant to this
order and opinion.
JOSEPH A. D'AGOSTA